BANDEROB v ESTATE OF BANDEROB
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NO. 95-217 IN THE SUPREMECOURT OF THE STATE OF MONTANA 1996 Third Party Plaintiff, Defendant, Respondent and Cross-Appellant, v. MARTHA BANDEROB, Third APPEAL FROM: Party Defendant and Appellant. District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable Russell K. Fillner, Judge presiding. COUNSEL OF RECORD: For Appellant: Terry L. Seiffert, Montana Attorney at Law, Billings, For Respondent: Mark E. Noennig; Hendrickson, Woodward, Billings, Montana Submitted on Briefs: Decided: Filed: Everson, Noennig September February & 7, 1995 6, 1996 Justice Karla M. Gray delivered Pursuant to Section 1995 Internal cited Operating as precedent document with result to Paragraph Rules, and shall the Clerk Montana I, the Opinion of the Court. 3(c), Montana Supreme Court the following be published decision by its of the Supreme Court Law Week, State shall filing not be as a and by a report Reporter public of its and West Publishing Company. All the parties appeal Thirteenth findings Judicial of fact and the Estate award to Neil Neil District and conclusions of law. of limited breach entered Court, of Frank Banderob and Martha on its from the judgment Banderob appeal of lease Yellowstone Neil (Estate) damages in his in this County, Banderob cross-appeals, action case by against on appeals, from the the Estate. the award of damages to the Estate claim. We affirm in part and reverse in part. We address the following dispositive issues: 1. Did the District Court err in Banderob consented to the compensation 2. not Did the District Court err in concluding recover under quantum meruit? 3. Did the District venture existed? 4. for concluding that he received? Court err in concluding that that Neil Neil could no joint Did the District Court err in awarding Neil compensation his services and improvements to the property? 5. Did the District Court err in concluding that Martha Banderob owed rent payments to the Estate? Neil and 6. Did the District Court err in concluding that Neil is not entitled to a set-off against rent owed, under the theory of unjust enrichment, for the Estate's tax savings from the special use valuation agreement? 2 FACTUAL AND PROCEDURAL BACKGROUND Neil Frank Banderob Banderob Frank's near to live paid for oral was paid repairs until Pryor, grain between of veterinary and licensing. and pigs, also others either to which ranch from and 1955 room and board, spending toward provided and the use of ranch pasture did custom ranch work for and and a contribution bills, Frank the ranch the purchases on the received Over agreement, for participation in 1982, Neil for life. and Frank pursuant wages or reimbursed For his death Neil one of the most of his No express specific a share insurance for and supplies existed grew up on was the only equipment he made. money, Neil of the decedent, children on ranch equipment. repairs Frank's children of the Banderob Montana. purchased or written, Neil All and work on the ranch Neil the years, is one of four (Frank). ranch children (Neil) Neil with cattle, and equipment. in addition Neil to his work on Frank's ranch. In 1981, attorney Neil and his in an effort Neil on the ranch. acknowledged that it any change and Neil Frank estate equally brothers 18, died in attorney met with to obtain "justice" hoped that Frank was Frank's continued 1982, among his approximately Neil filed Neil's would children a creditor's $175,000 for labor, and that equipment, but agreed with devised designated representatives. claim 3 right," to as before. a 1978 will four contributions "make it on at the ranch leaving and Frank's Frank never decision. Joe and Norman as co-personal 1982, for Frank the supplies, his Neil's On June Estate for and repairs. The Estate rejected agreement for equipment, appreciation in improvements of January Neil each year for Prior property based which on compensation and and his wife for the resulted terminated Martha The lease in writing Annual rent of $5,500.63 from six was required of the the months prior to be paid 1 and September of the lease the Estate leased was automatically was $11,001.25, on January to any termination and Martha, 15 each based on default to serve in a written by go-day of default. In October 1984, special use Internal Revenue Code. property for materially valuation tax exchange for Beginning payment, $110,000 did signing in Neil Martha In September and Martha stating that that, the lease pay the Estate because they a family any lease member The Estate as a result of provisions in agreement. the January the semi-annual sent had failed was no longer 4 of taxes and excluding of 1987, the valuation estate use valuation not the 10 years. renegotiate did that a of for in federal signed 2032(a) reduces provided 1986, Neil, Section operation the special payments. appeared not September and under purposes, in its Neil including Such an agreement participates the agreement. heirs, agreement estate saved approximately it the action repairs, one year. unless installments notice this seeking and 1, 1984, Neil to the end of the year. year. filed soon thereafter, supplies value from the Estate renewable Neil he made. Effective equal claim. or quantum meruit labor, ranch his in a letter 1993 lease to Neil to pay the rent, effect. Neil and Martha's attorney responded 28, 1990, On September day notice of payments. Estate lease Neil rent. Neil seeking the He also Agricultural from to modify Stabilization to the alleging defenses Estate sought action the and Martha to cure and seeking on in effect. failure he incurred improvements by their in this expenses was still gave Neil failed affirmative for realized alleged and Martha asserted and agreement. to to cure default, set-offs maintenance the lease relating a counterclaim and failure savings the Estate default After filed that make rent default, breach accrued to the the the lease and Conservation of the counterclaim and special the and unpaid in undertaking property a 90- unusual for the use tax valuation as a result Service of payment modifications. The Estate mailed Neil and Martha a second notice on May 8, 1992, when it discovered that regarding notice. Thereafter, the earlier allowed the default notice default was not timely court Estate the Martha's Martha Estate Neil claims asserted, the of fact against the Court the new the and in the event that in the event the the reasonable lease value of the ranch beginning party a defect District reciting relief of January had been Neil and 1, 1986. defendant. Court held a bench trial findings the Alternatively, sought was added as a third extensive declaratory cured. use and occupation The District Neil's as was asserting an amended pleading and requesting determined, terminated, to file Neil of default and, thereafter, and conclusions Estate, 5 the of law. court entered With regard concluded that to Neil consented to the compensation services and supplies recover under between Neil Neil simple contributed quantum meruit and Frank. $19,283, at the enhanced value and that $1,640 6%, for ranch payment that could not existed the court awarded and $17,643 to the ranch from his Neil compensation resulting for venture no joint however, in services of the as full to the ranch, In addition, representing interest he received and $10,000 in for improvements Neil made. With regard that It Neil to the Estate's counterclaim, and Martha had breached entered judgment delinquent lease accruing the the lease by failing the Estate payments until The total for accrued against Neil to pay rent. in the amount of $114,277.45 and interest, as well and the property terminated amount of Neil's the determined is lease against the court judgment, $29,283, and Martha portion appeal of payments vacated. was to be set the and the Estate Estate's off and Martha. Neil interest as lease in judgment cross-appeals. STANDARDOF REVIEW We review part v. test Knight (citations a district to determine (1995), omitted). is not supported district court with the committed. court's whether 269 Mont. 320, A finding Daines, 888 or, the evidence conviction P.2d at 6 888 is clearly evidence 906. that under a three- erroneous. 324-25, of fact misapprehended and firm of fact they are clearly by substantial definite findings if Daines P.2d 904, erroneous if so supported, or this Court a mistake We review 906 is it the left has been a court's conclusions of law to determine whether they are correct. Dairies, 888 P.2d at 906. DISCUSSION Did 1. consented the District Court to the compensation With regard other contributions the District that court also of the Court to found that, determined between felt that paying accepted operation for before the benefits Neil Neil received were all ranch practices. was reached and Frank was bound by his admission The a purchase did the ranch when Frank died. the and death, on the hoped to negotiate under Neil Frank's Neil and concluded, to that his labor remained and Frank was that and consented not promise The District that the only Frank would pay what he § 28-2-503, compensation MCA, that Neil he received as being the court's findings payment. Neil does not relating a matter He argues of law in failing of knowledge to the compensation that contend that of the agreement erroneous. his lack asserts specifically to the extent are clearly that although Neil Neil compensation to change his compensation he would receive like for and that no agreement agreement full that pay refusal ranch, that found agreed Frank's claim to the ranch Court Frank despite Neil to Neil's err in concluding he received? that between the District to conclude, of certain and benefits the cases relied himself under facts received Court on by the court erred § 28-2-503(2), invalidated as full and Frank his payment. as MCA, consent He also are distinguishable on their facts. Section acceptance consent of the to all benefit known or ought first contention compensation inherit that a transaction arising that he and benefits that to Neil, is from it, the ranch and, equivalent recovery for his a accepting." Neil's to--the based on an "impression" his labor to as the facts consented ultimately as a result, "voluntary so far accepted--and Frank provided the Thus, would be his. he did not know of the "fact" the ranch not preclude provides to be known to the person is "anticipation" according of the obligations are or MCA, 28-2-503(2), that acceptance and other he would not and consent contributions do to the ranch. The problem by either Neil to with Neil's the stipulated stipulated facts to the fact his that, father's to his father's his father through that his father would that such decisions never did effort successful. ranch-related "make it negotiate he tried 1981 for him He also papers mother's at name to negotiate "justice," Finally, up to his hoping he acknowledged father and that his right." as found by the court to from his at trial. entitled in 1975, he signed right." were entirely presented purchases. agreed that in is not supported agreement property attorneys "make it In addition, Neil's no specific He further with father that transferring name. it or the evidence when his mother died request is that for wages or reimbursement stipulated contention and not challenged a purchase Nor did Frank ever promise 8 of Neil the that ranch by Neil, was not he would receive the ranch when Frank died. Simply the benefits were all Neil Neil stayed received on, despite The Frank's stipulated and Neil's efforts alive that he would agreement could was reached. have left indeed, Neil benefits stayed were the known provided Neil this the District Court Neil's he did With while not to no Neil do so; and of the circumstances. and unchallenged § 28-2-503(2), accept Neil in matters be requests failing by MCA, which the his his compensation of some his evidentiary it the to conclude he received. in support these for regards, either was required the Estate's 9 that he findings--in findings, Neil them to the District and he "stuck us to determine own testimony to negate "gave him day to make additional "anticipation." in order parents someday if to the compensation not provide or the not establish would that based on such additional exception did argues essentially erred the Neil ranch not consent "impression" did Frank was the compensation Court to that, death, that, he chose under continuing clear Frank's is clear the ranch would be his favor--and, these in This argument however, also after knowledge "facts" backdrop, that "anticipated" that it any time, full benefits. by Frank. impression" out. " receive are found, to pay and the ranch while by the District pertinent by Against the with as found are to acquire at agreed to pay increased on at the ranch accepting Frank provided These facts, Neil, ranch Frank evidence The evidence the and as the court that refusal facts notwithstanding or ensure stated, Court's consent the to prove defense; satisfaction. he It is District the Court--to of law that, lack for Froehlich purposes that the cases facts on not those Even assuming inapplicable, were supports the his record before in determining erred benefits of the 387, 892 as a matter MCA, Neil established regarding the compensation the District (1938), written Court those cases in the present are Neil that Neil 66 Mont. case; presents conclude consented no none. that 64, We agree decided were in addition, here in in 1, 79 P.2d any it is event. on by the District and we have located us, we cannot were applicable the cases relied erred agreements. Court authority which On the basis the District of Court to the compensation and he received. 2. Did the District Court err in concluding not recover under quantum meruit? Neil expenditures the theory of conclude 107 Mont. however, position, 381, v. Beyer cases that that (19231, involved from those that for Co. v. Anderson which distinguishable clear facts is that on Stone-Ordean-Wells those the credibility 270 Mont. We cannot the and to which he consented. second contention because fact--here, our judgment (1995), of material 212 P. 853, and Cook-Reynolds 658, of of 5 28-Z-503(2), he accepted Neil's trier and determine omitted). of knowledge and benefits the not substitute 544 (citation P.2d 540, of weigh evidence Magone v. factfinder. relying province and we will witnesses, his sole asserted a right to recover and use of his equipment of quantum meruit. the value of his Neil Court could services, in the ranch operations The District 10 that concluded under that no quantum meruit recovery was available to Neil. "Quantum Meruit" as an amount of recovery simply means "as much as deserved, " and measures the recovery under an implied contract to pay compensation as the reasonable value of services rendered. Lutey Construction-The Craftsman 851 P.2d 1039 391-92, 1037, 1981), 626 P.2d 52, consent of the parties, equity, based on the Community Hospital establish plaintiff Brown v. that Frank contract arises of natural not on unjust of 150, and St. James Services omitted). To enrichment, of some kind advantage from justice enrichment. or fault 150 Mont. (Wash. App. and Rehabilitation based misconduct (1967), determinations agreed cannot particular Neil by the by the defendant. 432 P.2d 156, the 386, the benefits by staying consented Court determined compensation Communitv HosDital that to pay and that, circumstances the District pay additional services Read contract unjust of Social v. 387, 390 omitted). those received, of he was taken Based on its were all Kintz 257 Mont. 80, 85, 595 P.2d 379, 382 (citation Thornton (citations under doctrine must demonstrate or (citing (19931, but from principles an implied defendant State An implied v. Dep't 182 Mont. (19791, 55). v. existed. in concluding coexist amount, or with in a that specific compensation no implied contract relied an implied received on at the ranch the The court that a to Neil agreement manner, James Community to on St. James promise particular he to pay for to for pay a services rendered. Neil distinguishable contends from that St. the present case because 11 that Hospital is decision was premised on the correct that Hospital. that a written & the other St. is written in agreement agreements Neil support in Neil that the consented contributions Neil of Court that entitlement the evidence that law or in he received. James Communitv to pay Neil the the law will Hospital, value of we Neil's of law. Frank took advantage Brown requirement or fault by the defendant, not that a or that See Brown, 432 P.2d imply a promise to pay amount or in a particular in our analysis quantum 12 err and Frank that of the plaintiff. under not to the ranch. to pay a particular recovery did Frank provided shows that we need go no further to a benefits he met the misconduct as here, because an agreement to St. promise took advantage manner exists, in contributions here as a matter therefore, Where, if to situations compensation between Neil and other implied demonstrate the defendant at 390. no exists him and, plaintiff services and pursuant argues limited District to the an agreement his that services based on either the amount of money and other conclude be implied those no analysis would accept basis, On St. James Communitv Hospital, created On that will for That consent for James Community James Communitv Hosnital-- pay to pay. and he is 595 P.2d at 381. not expressly offers above that as payment St. of services to to pay, of such a limitation. We concluded determining St. to pay the value 595 P.2d at 382. logic in amount or manner--is involving existed conclusion a special particular contract contract James Communitv Hosoital, our hand, no promise there of a specific existence meruit. of a party's Therefore, we decline to address Neil's argument that he satisfied the Brown requirement. We hold Neil could that the District not recover under Did the District 3. venture existed? As an alternative asserted for of a joint years. Court A joint err in concluding of recovery of a joint of the ranch venture in concluding against venture that between himself from 1955 to 1982. 120, Mont. v. The definition over fifty is an: BBD Partnership 123 (quoting 438, 112 Mont. Four existence 444, 159, (1993), Sunbird v. 625 (quoting in 162, Anderson 845 P.2d (1982), 200 Cameron (1941), order to establish the venture: 2) a common purpose agreement at or contract creating among the parties; of interest; right 845 P.2d and more for as some 1064-65)). of a joint 3) a community 158, Rae v. 114 P.2d 1060, 1) an express or implied the joint venture; Wiesner, Inc. must be satisfied elements 4) an equal 256 Mont. Aviation, 651 P.2d 622, 167, Neil and Frank "enterprise undertaken by several persons jointly, more particularly, as an association of two or persons to carry on a single business enterprise profit. It has also been defined, somewhat variantly, a special combination of persons undertaking jointly specific adventure for profit." Wiesner no joint the Estate, has remained unchanged in Montana for venture that quantum meruit. theory the existence the operation Court did not err and of control. 123 (citation 13 omitted). A joint venture arises only themselves the in this The Court venture. the for as a matter of law. basis, argues legal error this those made by the joint for associate that to rely a joint by the in venture, the did Neil not and form venture existed on the Wiesner principle may be inferred circumstances His from and, on that position, to make findings agreement venture regard clearly however, different and that nothing of such are and, Neil from Neil by findings evidence; in this moreover, regard a clear a no intent does not contend evidence record this before and we are not that or us, joint to these otherwise no such but that the supported by did not misapprehend the regard the court 14 of that the There is no question in found evidenced on the be successful. Court's court created substantial based could the element and Frank record a venture. unsupported erroneous on each required element, which substantial evidence first under contention District the existed establish findings to Court and that no joint the venture. With District to the existence singly venture court. Court omitted). regard asserting a joint or the surrounding requests essentially purports to create conduct with determination conclusion Neil the agreement findings elements the court's the parties' to Bender v. Bender findings--taken court's any of the required the basis parties by a party Those aggregate--reflect satisfy the manifested. entered which must be satisfied a joint that of 470, 480, 397 P.2d 957, 962 (citations District elements intention manner is clearly 144 Mont. (1965), of when left are with a definite and firm conviction that a mistake has been committed. See Daines, 888 P.2d at 906. Neil element His asserts that required arguments to establish consist clearly reflect a joint venture" 1982 clearly he satisfied of that [he] the "the court's findings judgment for redetermining of "the of from 1955 to to keep the ranch in reviewing not substitute by reweighing of witnesses. facts of the elements our standard of fact venture. that in unison We will every-- a joint of the parties fact. the credibility of all meet ignore of the finder that did they were acting district indeed, statements conduct Such assertions in operation." existence conclusory in fact and that reflected the first--and, our evidence See Maqone, a and 892 P.2d at 544. We conclude relating to creating the joint of four the claiming the that Court's matter arguments establish Wiesner law. provide venture must the be basis we need not of a joint the District 15 for the party 845 P.2d at the District was established elements Neil's as a similar necessary to venture. Court existed. agreement by address three fact Because each (see Wiesner, venture of or implied satisfied a sufficient remaining findings erroneous. venture no joint Therefore, the existence no joint an express of a joint regarding Court's are not clearly that that of elements findings We conclude that venture conclusion of District nonexistence the existence these 1231, the did not err in concluding 4. for Did the District Court err in awarding Neil services and improvements to the property? The District for his services, supplies, also owed, for awarded relying on Estate's the in services monetary the Estate argues awarding that the lease, a matter the Estate first, looking at each of these We concluded determining that Frank provided did not err for his recovery for above that Neil his services. in determining services or the to the existence that ranch of from services remained and joint claim for the he made on the ranch increase in value the Estate's as as a cross-appeal awards in turn. the consented meruit no award is available did not We address of the improvements. the services, quantum meruit that by cross-appeals the award for and improvements contends rent summarily quantum award on Neil's of law where the property result by submitted The Estate Neil's the of repairs erred any award for rejected against on his Regarding Regarding value $19,283 for of $19,283. made to the ranch information only no basis properly a total and the Estate. Court as a ranch hand. theories. contributory during District and equipment as a set-off enriched the compensation of of improvements awards to Neil. the court venture value that as full for interest, $10,000, calculations expert for after Neil which unjustly contends $1,640 contributions 6% simple the contributory Neil both with the lease claim awarded Neil including together The court during Court compensation District to the We also Neil did compensation concluded could not recover based on either a joint 16 Court venture. not err in and benefits that the court compensation a quantum meruit We note, in addition, that "[blenefits the District paid to Neil 1982 were equal no legal basis remained erred services for entered his ranch value of his services." upon which awarding as a ranch Neil hand, of fact on the an award for could be premised, in a finding work to the reasonable the ranch properly Court Court Neil's we conclude $1,640 including as his from that 1955 to Because services that on the District compensation contributions for his of equipment and supplies. The parties court's also dispute award of award to Neil a conversion words, $17,643 for his of the $1,640 erred as for award into MCA, interest MCA. We need not resolve "interest" into Neil was added--or, under Neil's that, Neil cross-appeal Neil both however the additional this the Estate's issue for Neil's expert that argues the court argument to minimize erred Court erred the court the conversion further in awarding on in awarding as interest, erred the amount of his 17 the which our and the $17,643 that that based on our conclusions the District services § 27-1-211, the applied--necessitates Moreover, in writing onto approach, the interest" Our conclusion $1,640 in other that "legal under $1,640 award is to an agreement the denominated, $17,643. the $1,640 need not address was or, either dispute. awarding dollars this interest in current conclusion erred this that The Estate pursuant of the on the dollars current MCA, or prejudgment § 31-l-107, Court contends inflation. under District Neil propriety interest" of law in awarding a matter under § 31-l-106, and legal as "6% simple services. an adjustment court the nature in relying award. we on The Estate Neil also cross-appeals of $10,000, for improvements lease, as a set-off that the Neil's that value against of the improvements Mont. only enhanced ranch decreased court for ultimately enriched. relying value over included Estate's favor In Overcast, of eventually offered to purchasing unacceptable recover his at improvements the lessee sell the land 1060. nonremovable failed present to of the land. may not recover improvements the tenant Ultimately, Overcast, that the time, the the expired, but court's in the the the the lessee in the and, at 642 P.2d at for making permanent enhance the property's has not made the premises value; 1062. more valuable were suit lease did the We held 642 not the that unless differently, to lessee increased improvements stated terms filed trial, improvements lessor Overcast, clause" his 18 that to the land in hopes improvements. improvements evidence and which the judgment lessee, in making permanent encompass could be made to the ranch. the The "improvements 197 been unjustly conclusions, When the lease to (1982), of had not against Neil in tenants period made improvements it. to the lessee. costs latter of enriched concluding relevant set-off findings were permanent Further the because v. Akra that the Estate these the $10,000 for concluded the entered was unjustly which that Notwithstanding award to during by $10,000 on Overcast improvements concluded judgment lessee the Estate of the property. in The court was enhanced and that the value value owed. 276, 642 P.2d 1058, the court reimbursed P.2d ranch Court's he made to the ranch rent Thereafter, amount. the District a the "if to the owner, the owner has no obligation expenditures to make compensation, may have been." Overcast, however great the 642 P.2d at 1062 (citations omitted). Here, to the parties 1991 during appraised which value Neil in value improvements Overcast purposes, decrease in value Whatever in not however, value by $10,000 Court's as to make compensation, improvements for repairs is ranch finding of however great did were not the tenant's Neil asserts the testimony expert's that of its report the Estate increased for improvements in is not "has no obligation under may have been" of the ranch the or lease. expert. states conceded the $10,000 The record only that the have been enhanced by as much as $10,000. spent increased & 642 P.2d at 1061-62. Overcast, specific a $1,900 improvements. ranch the value duty in making only the expenditures increase a larger incurred The Estate for improvements. Neil's Neil's Neil's ranch that supports the the the Neil's from that evidence. that that the record the issue, whether of or costs 1982 to $210,000. possible absent value" result a by substantial for it of value from at from $432,600 would have occurred District the period improvements the since of over determinative increased the value the the is may have been, Thus, supported made the the "contributory the improvements enhancement that, of the ranch decreased Such a decrease permanent stipulated repairs; value of $1,900, no testimony value This but also or 19 reflects, other amount via however, of the figure included evidence that ranch may included $5,025 related Neil this a dollar amount ranch. Neil for repairs Furthermore, and Martha were their some under $10,000 to serve difference between $10,000 improvements out the increased in to that thereE.1 the the value ranch or ranch. We hold the $10,000 repairs which $1,900 the rent in value 'I [mlay This have been testimony support increased is for value evidence as a result of supports the and the that Neil was not that the court improvements; to judgment that did court not erred we also counterclaim that Neil payments, and interest and third and Martha breached and sought thereon. recovery Based on its 20 increase improvements correctly entitled to recover the value in including in its hold, party however, for the judgment Neil is such improvements. that Neil the by failing of the unpaid findings of that complaint, the lease by determined, increase in the amount of $1,900 for its Neil's is clearly a $1,900 permanent the which finding of the ranch by $10,000 that improvements for Court's Court err in concluding 5. Did the District Martha owed rent payments to the Estate? alleged the that for there 'I conclude to Overcast, repairs In of concluded evidentiary District substantial We further entitled by noting the established and that pursuant correctly to compensation as substantial that erroneous Neil. value award. We conclude value the rounded his maximum increase contributions insufficient in the lease. the expert up to other Court are not entitled duty the ranch any increase the District Additionally, of to that Estate to make rental Neil and amounts and Martha failed the to make the rental lease does not require claim for were liable rent, the and Martha's given notice cured by presumed the or its they that pursuing Neil a and Martha payments. The court were due as a result of which in the first which Neil are do not challenge Conclusion liable of they were of default was and Martha was notice received only with which related to the that, amount is precluded address Neil default notices, determinations not require action the earlier notice was not regarding the lease to give notice based on failure part, the claim the court's they breached Court's Conclusion They of Law #13, of default. "served" for findings, rent. incorrectly its given unpaid the notices argument however, pertinent the pursuing from the Estate for of the District based on those to the court's second notice and Martha's that Estate sufficiency owed and the Estate the regard because either of Law #12, to error In lease before payments notice assert breach concluded the any error and Martha findings contend of default and that to cure the defaults failure second by the lease to have received. Neil that for that and that the Court Estate determined required a notice the District to separately Neil payments stated the We need not the sufficiency unchallenged of default the on them, rent. and that They of the separate the lease before pursuing did a to pay rent. default provision in the provides: Default by Tenants prior to termination of lease. If the Tenants should fail to carry out substantially the terms of this lease, the Landlord may serve a ninety (90) day written notice to the Tenants of the Tenants' failure 21 lease to fulfill the terms of this rental agreement, specifying the exact default, and the requirements to correct said default. If the Tenants fail to correct such default within the ninety (90) days, the Landlord shall have the right to re-enter and to take full possession of the farm and buildings . . . . This provision of default enter, establishes and an opportunity take does not breach possession require claim for lease pursuant did Thus, not for the District of supported and the court payments While before tenants Williams Double 573 P.2d 649, distinguishing detainer the that the lease rent unpaid rent that instant was never pursued the by the may be pursued Neil they Hill is and Martha failed to make case. a lease 22 Hill Montana 248, 255, involved from when unlawful damages, our statement under Here, terminated 175 Mont. Although to treble rent any termination, to the lease. (19781, was due under for to pursuant omitted). (citation liable under does not require Moreover, and prior 653 the a by the Estate. effect a landlord re-entry the lease of the lease. in when rent to It and Martha under the lease. for v. remains re- may pursue The claim that Diamond Corp. entitles tenant applicable for could the lease. Estate of found accordingly, is are liable right a claim as alleged a lease the of default. finding by the language admitted, its owed by Neil Court's a notice the rent and terminate before pursue rent default the Estate notice rent. to the notices is a claim ranch a notice unpaid of a go-day written to cure before of the such The Estate Estate the necessity an existing the District by either party; that lease is Court found indeed, Neil admitted at trial that therefore, Neil that the District and Martha unpaid under Neil are that Estate's counsel under its in concluding Estate the for owing Court and on a 1987 of the unpaid in rent from the the lease was rent should 1990 by claiming its letter view that the Estate erred from pursuing Joe Banderob's because in of equitable unconscionable strict legal 615 P.2d payments. be estopped from to unpaid rent a party from a right 910, advantage right. 914 estoppel Matter its to prevent own wrong while of Shaw (1980), (citation omitted). is another's conduct. King v. Rosebud County claiming estoppel manner that (1980), must act response communicated and relied to the that Martha element (1981), rely the lease was still 23 on 193 Mont. not Carroccia establish attorney in effect in a v. Todd omitted). that from the Estate. Neil's 268, The party representation the worse. did letter, of detrimentally other's on the 1987 letter Estate's 310, 316, 615 P.2d at 914). upon the for 189 Mont. 172, 177, 615 P.2d 225, 228 (citation Neil detrimentally must m, changes his position 189 Mont. Here, a party 717 (citing asserting An essential estoppel 631 P.2d 711, that of is equitable in that the lease. taking 279, rent the District based and Martha, position that was not estopped is existence The object its contend containing to Neil changing also contention in According We hold, did not err to the the Estate Their longer in existence. the lease. claim. no was still Court liable and Martha concluding the lease they Indeed, immediately and there were no further communications to and work live conclude, Neil Neil because the period such result if County the (1991), omitted). which has remained first breach is vis-a-vis The statute eight via rent in party In re Marriage of Richland 540 (citation time, but to enforce the in light of its between was executed own within is filed exist The of on a written MCA. breach limit It specified the applicable lathes must demonstrate requiring the is of the lease within of Hahn and Cladouhos 24 parties in 1984. an action the time the in September occurred for claiming circumstances delay v. 27-2-202(l), well concept to elapsed counterclaimed 1991, during an inequitable 537, Section When an action the it for the Estate rent Filler agreement since years. in 806 P.2d at 540. limitations that lathes. create due simply of rent of We err an equitable 806 P.2d nonpayment undisputed extraordinary would 290, a written is limitations, is for would be inequitable in effect not has been an unexplained Filler, agreement of Lathes is not applied lease it. bars the Estate's a claim were enforced. it from did lathes each case must be determined the the statute. that to pursue 285, circumstances. unpaid Court continued theory. that rights on whether claim; Here, 1986. failed 247 Mont. primarily particular estoppel when there asserted and Martha income District and character Lathes asserted the 1986 to 1990. applicable Neil and receive and Martha contend the Estate a duration turns that between is regard. ranch and Martha's Finally, which on the therefore, rejecting claim in that statute application (1994), by that of 263 Mont. 315, 319, Neil and Martha 601 (citation 868 ??.2d 599, action for was over rent contend until the and the Estate circumstance, they special that lease would be inequitable. clearly valuation agreement, extraordinary circumstance timely the This parties. admissions paid that and that came. is and Martha Neil because that Neil Neil, can the the special use such in light to receive rent from hoped to make the payments Neil's was not the benefits and Martha do not challenge refrained between of that an of lathes the lease in existence, Estate the to the application continued such a enforce constitute true period under to its how a benefit of a remedy under remained Neil Estate who executed particularly the lease finding lease pursuit agreement to understand by all to pursue in taxes; the as to require Moreover, the lease. Court's We fail including waited use valuation allowing contemplated to the Estate's the Estate had saved $110,693 urge the Estate that omitted). of the District terminating the "when better times I Neil and circumstances Estate's have not demonstrated which would require timely P.2d at 601. established Martha claim. Nor, any inequity rent the lease rent under requires. the lease the application See Marriase under any of this from requiring We conclude is not barred of lathes to the of Hahn and Cladouhos, the circumstances resulting extraordinary that case, 868 have they them to pay the the Estate's claim for by lathes. 6. Did the District Court err in concluding that Neil is not entitled to a set-off against rent owed, under the theory of unjust enrichment, for the Estate's tax savings from the 25 special Neil in use valuation and Martha the amount valuation of use entitlement Estate the to to to because the and Neil execution special no provision use valuation some five less after circumstances, the Estate regard court with concluded stating that and the recovery by Neil enrichment they the rent before from freely with was Frank's later into other of heirs, Under such agreement. a written by The lease expressly and responsibilities estate the or misconduct the existence of the $110,000 his executed. use valuation of misconduct the compensation entered found no fault other--rights the he signed them--upon Neil lease Court absence $110,000 was aware of the Estate's together the asserted agreement. to the special the payment--and parties, Neil Moreover, the District the in the lease allowing agreement, months during owed for valuation use use basis, that special special ranch On that rent enriched the the use valuation found of the agreement. from operated against Martha--or was unjustly resulting Neil the special but included the Estate period. Court seek that savings a set-off The District intent tax valuation saved under lease, claimed agreement special agreement? by the of the Estate, tax savings precluded under an unjust theory. Neil and Martha District Court's valuation agreement do not specifically of findings and their erroneous. Instead, 7P[o]bviously they they fact unjust advance contend relating enrichment conclusory were put in a position 26 that to the claim any of the special are clearly statements of being use taken such as advantage of. to . ." Neil and Martha the District legal Court's authority As misconduct took two by the defendant, of them. Brown, 432 P.2d at 390. under above, unjust found no fault the no issue. some kind plaintiffs enrichment or misconduct clearly seeking must establish or that the Here, by the Estate. erroneous We standard. See 888 P.2d at 906. The evidence time Neil he knew that agreement. supporting executed With to execute the in estate Neil each of chose--together agreement to the ultimate benefit heirs. The upshot a party contained of the agreement, terms agreement of in federal finding 27 would written result and, was agreements, to special taxes. the Estate heirs-- two transactions the Estate estate that other which relating the the lease provisions. the of which referenced The aim of was achieved: $110,000 Court's terms and neither into of the Estate to two separate express other. ultimately approximately the District the of these at use valuation Frank's use valuation made himself which with that, in May of 1984, and other, savings the that rental, special tax therefore, the Estate he chose to enter express Neil indicates to seek the special knowledge, certain finding with intended that contained the court's the lease the Estate Some months later, the cite of fault finding matter regard they of review which indeed, theory a Court the this with issue the District Daines, conclusions; error advantage or defendant do not assert under under that legal in presenting discussed recovery also subject or varied use valuation benefited by saving We conclude was not at fault that or guilty not of any misconduct paying the tax by electing savings to the special Neil is use valuation supported and by substantial evidence. Neil's conclusory us to determine from that simply evidence make our own finding review Neither of trial the sole court province of witnesses; we will not factfinder. & Masone, clearly that there trier and of no fault of its finding necessary fault/misconduct by concluded that owed, under Neil from the absent demonstrated Brown, 432 P.2d set-off or misconduct by of 888 P.Zd at 906. It the 544. the District credibility judgment for that or misconduct of of the that We conclude not err under We affirm Neil the Estate, entitled the by the Estate is fault 390. the for that therefore, Neil As set of unjust and reverse in part. tax forth defendant. that the See District to the enrichment. in part rent enrichment was not entitled the theory Court the Estate's of unjust by the the against agreement. under a theory We hold, District a set-off enrichment, or misconduct in concluding had not established to use valuation can be no recovery at that of unjust special there did was not the theory above, Court to under our standard determine 892 P.2d at the alternative, fact--here, our different erroneous. On the basis savings in request a finding was fault of substitute finding or, See Daines, the essentially to support is available evidence Court's regard Court findings. weigh not exists alternative Court--to District in this made by the District the Estate. is that arguments 28 As a result of the partial reversal, Court by decreasing amount of interest Martha the judgment the judgment $1,900, portion increasing we modify decreasing of the in favor the Estate's and in favor by the of Neil Banderob set-off against judgment the amount of the net judgment Banderob, entered entered of the Estate, We concur: J,&strces 29 to the that to the accrued amount against accordingly. District Neil and and
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